Harcleroad v. Commissioner of Social Security
Filing
15
DECISION AND ORDER denying 9 Motion for Judgment on the Pleadings; granting 12 Motion for Judgment on the Pleadings. Clerk of Court is directed to close the file. Signed by Hon. Leslie G. Foschio on 9/16/2019. (SDW)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
RICHARD DAVID HARCLEROAD, JR.,
Plaintiff,
v.
ANDREW M. SAUL,1 Commissioner of
Social Security,
DECISION
and
ORDER
18-CV-559F
(consent)
Defendant.
______________________________________
APPEARANCES:
LAW OFFICES OF KENNETH R. HILLER, PLLC
Attorneys for Plaintiff
KENNETH R. HILLER, of Counsel
6000 North Bailey Avenue, Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
GRAHAM MORRISON
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza – Room 3904
New York, New York 10278
and
ANNE M. ZIEGLER, and
FRANCIS D. TANKARD
Special Assistant United States Attorneys, of Counsel
Social Security Administration
Office of General Counsel
601 E. 12th Street, Room 965
Kansas City, Missouri 64106
1
Andrew M. Saul became the Commissioner of the Social Security Administration on June 17, 2019, and,
pursuant to Fed.R.Civ.P. 25(d), is substituted as Defendant in this case. No further action is required to
continue this suit by reason of sentence one of 42 U.S.C. § 405(g).
JURISDICTION
On July 9, 2019, this matter was reassigned to the undersigned before whom the
parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed in
accordance with this court’s June 29, 2018 Standing Order (Dkt. 14). The matter is
presently before the court on motions for judgment on the pleadings filed by Plaintiff on
December 21, 2018 (Dkt. 9), and by Defendant on February 19, 2019 (Dkt. 12).
BACKGROUND
Plaintiff Richard David Harcleroad, Jr. (“Plaintiff”), brings this action under Title II
of the Social Security Act (“the Act”), 42 U.S.C. §§ 405(g), seeking judicial review of the
Commissioner of Social Security’s final decision denying Plaintiff’s application filed with
the Social Security Administration (“SSA”), on March 17, 2015, for Social Security
Disability Insurance (“SSDI”), and Supplemental Security Income (“SSI”) (together,
“disability benefits”). Plaintiff alleges he became disabled on April 24, 2013, based on
fibromyalgia, neurogenic bladder, major depression, panic disorder, and
hyperthyroidism. AR2 at 236, 247. Plaintiff’s applications initially were denied on July 8,
2015, AR at 126-34, and at Plaintiff’s timely request, on November 16, 2016, a hearing
was held in Rochester, New York, via video conference before administrative law judge
Elizabeth Ebner (“the ALJ), located in the National Hearing Center in Falls Church,
Virginia, but the hearing was adjourned to permit Plaintiff to obtain legal representation.
AR at 67-77. On March 9, 2017, Plaintiff again appeared in Rochester, New York for a
hearing held via teleconference before the ALJ in Falls Church, Virginia. AR at 78-99.
2
References to “AR” are to the page of the Administrative Record electronically filed by Defendant on
October 24, 2018 (Dkt. 8).
2
Appearing and testifying at the hearing were Plaintiff, Plaintiff’s attorney Kimberly Irving,
Esq., and vocational expert (“VE”) Thomas Heiman.
On April 28, 2017, the ALJ issued a decision denying Plaintiff’s claim, AR at 1241 (“the ALJ’s decision”), which Plaintiff timely appealed to the Appeals Council. AR at
205-07. On March 22, 2018, the Appeals Council issued a decision denying Plaintiff’s
request for review, rendering the ALJ’s decision the Commissioner’s final decision. AR
at 1-6. On May 16, 2018, Plaintiff commenced the instant action seeking judicial review
of the ALJ’s decision.
On December 21, 2018, Plaintiff moved for judgment on the pleadings (Dkt. 9)
(“Plaintiffs’ Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion
for Judgment on the Pleadings (Dkt. 9-1) (“Plaintiff’s Memorandum”). On February 19,
2019, Defendant moved for judgment on the pleadings (Dkt. 12) (“Defendant’s Motion”),
attaching the Commissioner’s Brief in Support of the Defendant’s Motion for Judgment
on the Pleadings and in Response to Plaintiff’s Brief Pursuant to Local Standing Order
on Social Security Cases (Dkt. 12-1) (“Defendant’s Memorandum”). Filed on March 12,
2019, was Plaintiff’s Response to the Commissioner’s Brief in Support and in Further
Support for Plaintiff’s Motion for Judgment on the Pleadings (Dkt. 13) (“Plaintiff’s
Reply”). Oral argument was deemed unnecessary.
Based on the foregoing, Plaintiff’s Motion is DENIED; Defendant’s Motion is
GRANTED.
3
FACTS3
Plaintiff Richard David Harcleroad, Jr. (“Plaintiff” or “Harcleroad”), born July 5,
1970, was 42 years old as of April 24, 2013, his alleged disability onset date (“DOD”),
and 46 years old as of April 28, 2017, the date of the ALJ’s decision. AR at 36, 37, 74,
81, 235. Plaintiff is single, has no children, and lives with his dog, a pug, in an upper
apartment in Warsaw, New York. AR at 81-82. Although Plaintiff does not have a
vehicle, he has a driver’s license and drives his father’s vehicle every other day,
including to his father’s house, grocery stores, and to doctor’s appointments in
Rochester, New York. AR at 82-83, 261. After graduating high school, where he
attended regular classes, Plaintiff attended a vocational school, earning an associate’s
degree as a Licensed Practical Nurse (“LPN”). AR at 83, 248. Plaintiff then worked as
an LPN at various nursing homes until April 24, 2013, when Plaintiff began experiencing
urinary retention, requiring Plaintiff to use a catheter which caused pain. AR at 84-85,
88-89. The urinary retention problem resolved after four months, but Plaintiff then
developed fibromyalgia, chronic fatigue syndrome, depression, and anxiety. AR at 8587. Plaintiff has a history of alcohol abuse, but has remained sober since attending a
12-step program in 2012. AR at 83-84. Plaintiff denies any other substance abuse. AR
at 84. Plaintiff’s daily activities included caring for his dog including feeding, bathing and
walking the dog outside several times a day, showering, visiting with his father,
watching television, reading, attending appointments, visiting relatives, and socializing
with friends, AR at 87-89, 93, 259, 262-63, preparing meals several times a week by
grilling or baking, AR at 260, and some cleaning and laundry with help from his father.
3
In the interest of judicial economy, recitation of the Facts is limited to only those necessary for
determining the pending motions for judgment on the pleadings.
4
Id. Throughout the time relevant to this matter, Plaintiff’s primary care physician was
Robert Thompson, M.D. (“Dr. Thompson”), who provided Plaintiff with medication for
insomnia, bladder control, anxiety, depression, nerve pain, hyperthyroidism,
fibromyalgia pain, and gastrointestinal upset. AR at 249.
DISCUSSION
1.
Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability
benefits when she is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s
determination that a claimant is not disabled if the factual findings are not supported by
substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),
1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In
reviewing a final decision of the SSA, a district court “is limited to determining whether
the SSA’s conclusions were supported by substantial evidence in the record and were
based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (internal quotation marks and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
function to make a de novo determination as to whether the claimant is disabled; rather,
“the reviewing court is required to examine the entire record, including contradictory
5
evidence and evidence from which conflicting inferences can be drawn” to determine
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
instructed . . . that the factual findings of the Secretary,4 if supported by substantial
evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).
2.
Disability Determination
The definition of “disabled” is the same for purposes of receiving SSDI and SSI
benefits. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a). The applicable
regulations set forth a five-step analysis the Commissioner must follow in determining
eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v.
Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464 (2d Cir.
1982). If the claimant meets the criteria at any of the five steps, the inquiry ceases and
the claimant is not eligible for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920.
The first step is to determine whether the applicant is engaged in substantial gainful
activity during the period for which the benefits are claimed. 20 C.F.R. §§ 404.1520(b)
and 416.920(b). The second step is whether the applicant has a severe impairment
which significantly limits the physical or mental ability to do basic work activities, as
defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and 416.920(c). Third, if
there is an impairment and the impairment, or its equivalent, is listed in 20 C.F.R. Part
404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or “the Listings”), and
meets the duration requirement of at least 12 continuous months, there is a
presumption of inability to perform substantial gainful activity, and the claimant is
4
Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.
6
deemed disabled, regardless of age, education, or work experience. 42 U.S.C. §§
423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth
step, however, if the impairment or its equivalent is not listed in Appendix 1, the
Commissioner must then consider the applicant’s “residual functional capacity” or “RFC”
which is the ability to perform physical or mental work activities on a sustained basis,
notwithstanding the limitations posed by the applicant’s collective impairments, see 20
C.F.R. 404.1520(e)-(f), and 416.920(e)-(f), and the demands of any past relevant work
(“PRW”). 20 C.F.R. §§ 404.1520(e) and 416.920(e). If the applicant remains capable of
performing PRW, disability benefits will be denied, id., but if the applicant is unable to
perform PRW relevant work, the Commissioner, at the fifth step, must consider whether,
given the applicant’s age, education, and past work experience, the applicant “retains a
residual functional capacity to perform alternative substantial gainful work which exists
in the national economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation
marks and citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c). The burden of
proof is on the applicant for the first four steps, with the Commissioner bearing the
burden of proof on the final step. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4);
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
In the instant case, the ALJ found Plaintiff met the insured status requirements
for SSDI thought December 31, 2018, AR at 17, has not engaged in substantial gainful
activity since April 24, 2013, his alleged disability onset date, AR at 17, and suffers from
the severe impairments of fibromyalgia, obesity, neurogenic bladder with a history of
prostatitis (swelling and inflammation of the prostate gland), and hypogonadism
(testosterone deficiency), thyroid disorder, history of hidradenitis (obstructed hair
7
follicles occurring in armpit and groin), and subcutaneous cysts with residual scar tissue
status-post excision, cervical and lumbar degenerative disc disease, asthma, and
history of polysubstance abuse. Id. The ALJ further found Plaintiff does not have an
impairment or combination of impairments meeting or medically equal to the severity of
any listed impairment in Appendix 1, id. at 18-21, and that Plaintiff retains the RFC to
perform light work, with limitations including lifting, carrying, pushing, and pulling up to
twenty pounds occasionally and ten pounds frequently, sitting for up to six hours and
standing or walking for up to six hours in an eight-hour day, with the ability to alternate
between sitting and standing as often as every thirty minutes without going off task or
leaving his work station, frequently handle, finger, operate hand controls, and reach in
all directions with his bilateral upper extremities, occasionally balance, kneel, crawl, and
climb ramps and stairs, frequently stoop and crouch, but never climb ladders, ropes, or
scaffolds. Id. Plaintiff can have no exposure to unprotected heights and dangerous
moving parts, tolerate occasional exposure to extremes of heat and cold, vibrations, and
dusts, odors, fumes, and pulmonary irritants, can perform simple routine tasks involving
frequent interaction with supervisors and coworkers and occasional interaction with the
public, can tolerate occasional changes in the work settings, and was expected to be
off-task up to five percent of an eight-hour day in addition to normal breaks. AR at 2135. The ALJ further found that Plaintiff could not perform any PRW, AR at 35, and in
light of Plaintiff’s age, education, work experience and RFC, application of the MedicalVocational Rules supports a determination that Plaintiff is not disabled regardless of
whether Plaintiff has transferable job skills, with jobs existing in significant numbers in
the national economy that Plaintiff can perform, including cleaner/housekeeper,
8
photocopying machine operator, and office helper, AR at 36-37, such that Plaintiff is not
disabled as defined under the Act. Id. at 37.
Plaintiff does not contest the ALJ’s findings with regard to the first three steps of
the five-step analysis, but argues the ALJ’s determination of Plaintiff’s RFC at the fourth
step is not supported by substantial evidence in the record because the ALJ violated the
treating physician rule by failing to give substantial weight to the opinions of Dr.
Thompson, Plaintiff’s Memorandum at 19-26, and improperly substituted her own lay
opinion when assessing Plaintiff’s RFC. Id. at 26-29. Defendant argues the ALJ
properly considered Dr. Thompson’s opinions and provided good reasons for not
granting such opinions controlling weight, Defendant’s Memorandum at 17-22, and
despite rejecting Dr. Thompson’s opinions, substantial evidence in the record supports
the ALJ’s assessment of Plaintiff’s RFC such that the ALJ did not substitute her lay
opinion for medical evidence. Id. at 23-24. In reply, Plaintiff maintains Defendant,
rather than rejecting Dr. Thompson’s opinions, should have requested from Dr.
Thompson a function-by-function assessment of Plaintiff to close any gap in such
opinions, Plaintiff’s Reply at 1-3, and the ALJ’s failure to do so establishes the RFC
determination is the product of the ALJ’s lay judgment, requiring remand. Id. at 3-4.
There is no merit to Plaintiff’s arguments.
1.
Treating Physician Rule
It is undisputed that at all times relevant to this matter, Dr. Thompson has been
Plaintiff’s treating primary care physician. On three occasions, Dr. Thompson opined
Plaintiff is unable to work. In particular, in treatment notes dated October 18, 2013, Dr.
Thompson stated that Plaintiff was not then able to work based on pain, decreased
9
concentration, limited mobility, need to change position including lying down at times,
and an inability to squat, bend, stoop, balance, and lift. AR at 14-15. In a letter to
Plaintiff’s then attorney dated November 30, 2016, Dr. Thompson wrote that Plaintiff has
been out of work since 2013, initially because of a urinary retention problem, which was
then under control with medication, but that Plaintiff then developed symptoms of
gastroparesis, fibromyalgia, depression, anxiety, and fatigue, which conditions Plaintiff
managed with several medications. AR at 495. Dr. Thompson concluded that Plaintiff
“continues to be unable to work at this time.” Id. In another letter to Plaintiff’s then
attorney Irving dated December 19, 2016, Dr. Thompson expands on his statement
from the previous month, adding that after developing a urinary retention problem in
April 2013, which was first addressed with use of a catheter and is now managed with
medication, Plaintiff developed abdominal pain with bladder spasm pain, and was
diagnosed with gastroparesis. AR at 499. According to Dr. Thompson, Plaintiff’s
physical conditions exacerbated his chronic depression, requiring therapy, and
worsened Plaintiff’s fibromyalgia symptoms requiring multiple medications for pain. Id.
Dr. Thompson continues that Plaintiff “has developed chronic neck pain diagnosed as
cervical spondylosis with myelopathy,” and “has reported symptoms of memory
impairment and has had sedation with use of medication to control his symptoms.” Id.
Dr. Thompson concluded that “[o]ver these years [Plaintiff] has been evaluated and
treated by Psychiatry, Urology, Gastroenterology, and Neurology. [Plaintiff] currently
takes SOMA, clonazepam, Lyrica, methylphenidate, extended-release morphine, and
pantoprazole for his conditions affecting his ability to work.” Id.
10
Plaintiff argues the ALJ violated the treating physician rule by failing to provide
good reasons for rejecting the opinions of Dr. Thompson, Plaintiff’s Memorandum at 1921, asserting that although some of the impairments diagnosed by Dr. Thompson were
subsequently ruled out based on evaluations by specialists, the symptoms Plaintiff
experienced leading to the incorrect diagnoses were nonetheless consistent with Dr.
Thompson’s examination findings, id. at 21-22, which findings are not undermined by
the fact that Dr. Thompson is not a specialist in the relevant areas, id. at 22, given the
findings are supported by Plaintiff’s medical record, id. at 22-24, and insofar as the ALJ
perceived any inconsistencies in the opinions of Plaintiff’s treating physicians, the ALJ
was required to seek more information to close such gap. Id. at 24-26. In opposition,
Defendant counters the ALJ articulated sufficient reasons for giving little weight to Dr.
Thompson’s opinions, including that several of Plaintiff’s asserted impairments were not
medically determinable, Defendant’s Memorandum at 18, many of Plaintiff’s subjective
complaints are without corroborating clinical findings, id. at 18-19, yet Dr. Thompson
prescribed controlled substances for such subjective complaints, id. at 19-20, Dr.
Thompson is not a specialist, id. at 20-21, and several of Dr. Thompson’s findings are
conclusory and unaccompanied by a function-by-function assessment. Id. at 21-22. In
reply, Plaintiff maintains Defendant’s assertion that the ALJ’s rejection of Dr.
Thompson’s opinion as conclusory and unaccompanied by a function-by-function
assessment, the ALJ was required to recontact Dr. Thompson to obtain such
assessment. Plaintiff’s Reply at 1-3. Plaintiff’s argument on this point is without merit.
Generally, the opinion of a treating physician is entitled to significant weight, but
is not outcome determinative and only entitled to significant weight when “’well-
11
supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence in the case record.’” Crowell v. Comm’r
of Soc. Sec. Admin., 705 Fed.Appx. 34, 35 (2d Cir. Dec. 1, 2017) (quoting Burgess v.
Astrue, 537 F.3d 117, 128 (2d Cir. 2008), and 20 C.F.R. § 404.1527(d)(2)). Where,
however, the ALJ discounts a treating physician’s opinion, the ALJ must set forth “good
reasons” for doing so. Burgess, 537 F.3d at 129 (citing Halloran v. Barnhart, 362 F.3d
28, 33 (2d Cir. 2004)). The record establishes the ALJ sufficiently explained her
reasons for failing to give Dr. Thompson’s opinions controlling weight, including that
several of the impairments diagnosed by Dr. Thompson, including gastroparesis
(condition affecting the normal spontaneous movement of the stomach muscles,
preventing the stomach from emptying itself of food in a normal fashion, resulting in
heartburn, nausea, and vomiting), and cervical spondylosis with myelopathy (neck
condition where degenerative changes of the discs and facet joints compress the spinal
cord resulting in impaired function), were later ruled out with further diagnostic testing
and evaluation by specialists. AR at 33 (citing AR at 495-500). Specifically, Dr.
Thompson’s gastroparesis diagnoses was provisional and, based on the results of
blood chemistry tests, an ultrasound and an August 29, 2014 endoscopy, this diagnosis
was ruled out on September 16, 2014 by Robert N. Kornfield, M.D. (“Dr. Kornfield”), a
gastroenterologist, who instead diagnosed Plaintiff with “mild gastritis” (inflammation of
stomach lining usually caused by infection). AR at 320-24. Similarly, diagnostic tests of
Plaintiff’s cervical spine, including electromyogram and nerve conduction studies
(“EMG/NCS”) on April 6, 2015, were normal, AR at 390, and magnetic resonance
imaging (“MRI”) on May 7, 2015, showed no impingement on the cervical cord, nor any
12
significant encroachment on the spinal canal at any level, but did show some central
disc protrusion and broad-based disc bulge in the cervical spine. AR at 490. The ALJ
also correctly observed that Plaintiff’s urinary retention problem resolved after several
months’ use of a catheter and has “since been described as controlled on medication,”
AR at 31, which is consistent with Dr. Thompson’s opinions of November 30, 2016, AR
at 495, and December 19, 2016, AR at 499. The ALJ thus properly discounted those
portions of Dr. Thompson’s opinions concerning conditions that were not properly
diagnosed.
Substantial evidence in the record also supports the ALJ’s determination, AR at
32, 34, that many of Plaintiff’s subjective complaints are without corroborating clinical
findings, including Dr. Thompson’s report of Plaintiff’s “memory impairment,” AR at 343,
which not only was not corroborated on any mental status or neurological examination,
but such examinations showed Plaintiff with intact memory and cognitive functioning.
See, e.g., AR at 431-35 (May 28, 2015 consultative psychiatric evaluation by Adam
Brownfeld, Ph.D. (“Dr. Brownfeld”), finding Plaintiff with intact attention and
concentration, and recent and remote memory skills, with cognitive functioning in the
average range and general fund of information appropriate to experience). Likewise,
despite Plaintiff’s complaints of severe abdominal pain, as Dr. Thompson reported, AR
at 499, the diagnostic testing failed to establish such pains were anything other than
“mild gastritis” and were otherwise within normal limits. AR at 324-24. Nor does any
medical evidence support Plaintiff’s self-reported inability to balance, AR at 343, but,
rather, as the ALJ found, AR at 32, an April 6, 2015 evaluation by Andrew C. Hilburger,
M.D. (“Dr. Hilburger”), a neurologist, showed Plaintiff with intact coordination and
13
balance. AR at 385-88. The ALJ thus properly discounted Dr. Thompson’s opinions
insofar as they are inconsistent with other medical opinions in the record. See Carney
v. Astrue, 380 Fed.Appx. 50, 52 (2d Cir. June 7, 2010) (holding an ALJ need not give
controlling weight to a treating physician’s disability opinion where other medical
opinions in the record are “at odds” with such opinion).
The ALJ further noted that despite the absence of any medical evidence
supporting Plaintiff’s assertions of worsening pain, Dr. Thompson continually prescribed
increasing doses of controlled substances such as morphine, and suggested Plaintiff
pursue alternative pain management such as acupuncture, but no evidence in the
record indicates Plaintiff did so. AR at 27, 32, 34 (citing AR at 466-67). In contrast,
Plaintiff reported to his therapist that he controlled his pain with morphine. AR at 30
(citing September 26, 2015 Therapy Note, AR at 540). The ALJ also properly noted that
Dr. Thompson is not a specialist with regard to most of Plaintiff’s complaints and, as
such, simply accepted Plaintiff’s subjective complaints asserted with regard to those
impairments outside of Dr. Thompson’s treatment, including complaints related to
depression, anxiety, and substance abuse, AR at 24, and memory impairment. AR at
34. Significantly, the ALJ is permitted to consider whether a medical opinion relates to
the medical provider’s area of specialty. 20 C.F.R. §§ 404.1527(c)(5), and
416.927(c)(5). Plaintiff does not dispute that Dr. Thompson is not a specialist in the
fields of gastroenterology, orthopedics, neurology, psychiatry, or pain management.
The ALJ’s discounting of Plaintiff’s subjective complaints, as reported by Dr. Thompson,
thus is supported by substantial evidence in the record.
14
Nor did the ALJ err with regard to the determination that several of Dr.
Thompson’s findings are conclusory and unaccompanied by a function-by-function
assessment; rather, a plain reading of Dr. Thompson’s medical opinions establishes
they are, as the ALJ asserts, conclusory and unaccompanied by any function-byfunction assessment. See AR at 343, 495, 499. Requiring the ALJ to accept such
conclusory opinions would be contrary to the well-settled premise that the ultimate
determination that a claimant is disabled is reserved for the Commissioner. Wright v.
Berryhill, 687 Fed.Appx. 45, 48 (2d Cir. Apr. 14, 2017) (citing Snell v. Apfel, 177 F.3d
128, 134 (2d Cir. 1999)).
Substantial evidence in the record thus supports the ALJ’s reasons for
discounting of Dr. Thompson’s medical opinions which was not in violation of the
treating physician rule.
2.
Substitution of Lay Opinion
Plaintiff argues that the ALJ’s rejection of Dr. Thompson’s opinions for lack of any
function-by-function assessment establishes there was a gap in the medical record,
particularly with regard to the RFC determination, particularly with regard to Plaintiff’s
ability to sit and stand for up to six hours in an eight-hour day provided Plaintiff can sit
and stand at will, such that the ALJ was required contact Dr. Thompson for additional
evidence to fill the gap and that by failing to do so, the ALJ substituted her own lay
opinion for that of Dr. Thompson. Plaintiff’s Memorandum at 26-29. In opposition,
Defendant argues there was no “gap” in the record to be filled. Defendant’s
Memorandum at 23-24. In reply, Plaintiff maintains the record is devoid of any evidence
15
establishing Plaintiff retains the RFC as determined by the ALJ. Plaintiff’s Reply at 3-4.
Plaintiff’s argument is without merit.
In particular, no gap exists where the record, as a whole, supports the ALJ’s
determination of the Plaintiff’s RFC. See Tankisi v. Comm’r of Soc. Sec., 521
Fed.Appx. 29, 34 (2d Cir. Apr. 2, 2013) (remand not required to further develop the
record where “the record contains sufficient evidence from which an ALJ can assess the
petitioner’s residual functional capacity”). As relevant here, substantial evidence in the
record supports that ALJ’s assessment of Plaintiff’s RFC, especially the medical
findings of Harbinder Toor, M.D. (“Dr. Toor”), who performed a consultative examination
of Plaintiff on May 28, 2015, in connection with Plaintiff’s disability benefits application.
AR at 424-29. Based on the consultative examination of Plaintiff, Dr. Toor assessed
Plaintiff with a moderate limitation to standing, walking, and sitting, moderate to marked
limitation to bending or lifting, pain, headaches and dizziness interfere with Plaintiff’s
balance, Plaintiff is moderately limited as to pushing, pulling, reaching, and twisting of
the cervical spine, mildly to moderately limited with regard to fine motor activity with the
hand, and Plaintiff should avoid irritants or other factors that can precipitate asthma. AR
at 428. The ALJ gave Dr. Toor’s opinion some weight, observing Dr. Toor did not
indicate the source of the determination that Plaintiff is moderately to markedly limited to
bending and lifting, but otherwise finding Dr. Toor’s opinion consistent with limitations
expected to be posed by Plaintiff’s subjective fibromyalgia symptoms. Id. at 34-35.
Significantly, the ALJ’s RFC assessment is largely consistent with Dr. Toor’s opinion,
especially that Plaintiff is only moderately limited with regard to standing, walking, and
sitting, i.e., the functional findings Plaintiff challenges here. Moreover, the ALJ’s
16
reliance on Dr. Toor’s findings, AR at 34-35, was permitted insofar as the opinion is
based on a physical examination and is consistent with other evidence in the record.
See Tankisi, 521 Fed.Appx. at 32 (“A consultative examination is used to ‘try to resolve
an inconsistency in the evidence, or when the evidence as a whole is insufficient to
allow [the ALJ] to make a determination or decision’ on the claim.”) (quoting 20 C.F.R.
§§ 404.1519a(b), 416.919a(b)).
The ALJ thus did not improperly rely on her lay opinion in assessing Plaintiff’s
RFC, which is supported by substantial evidence in the record, and was not required to
refer the matter back to Dr. Thompson for additional evidence.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. 9) is DENIED; Defendant’s Motion
(Dkt. 12) is GRANTED. The Clerk of Court is directed to close the file.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
September 16, 2019
Buffalo, New York
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